T.K. v. Town of Barnstable

T.K., with and through her parents, G.K. and V.K., Plaintiffs, v. TOWN OF BARNSTABLE, BARNSTABLE PUBLIC SCHOOLS,PATRICK CLARK and MEG MAYO-BROWN, Defendants.

No. 17-cv-11781-DJC

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

August 7, 2018

MEMORANDUM AND ORDER

CASPER, J.

I. Introduction

Plaintiff T.K., a minor, filing with and through her parents, G.K. and V.K. (collectively, "Plaintiffs"), has filed this lawsuit against Defendants the Town of Barnstable ("the Town"), Barnstable Public Schools ("BPS"), Patrick Clark, Principal of Barnstable High School ("Clark") and Meg Mayo-Brown, Superintendent of BPS ("Mayo-Brown") (collectively, "Defendants"), alleging violations of Title IX, 20 U.S.C. § 1681 (Count I), negligence (Counts II and III), disability discrimination under the Rehabilitation Act of 1973, 29 U.S.C. § 794 ("Rehabilitation Act") and Americans with Disabilities Act, 42 U.S.C. § 12131 et seq. ("ADA") (Counts IV and V), Fourteenth Amendment Equal Protection violations under 42 U.S.C. § 1983 ("§ 1983") (Count VI), intentional infliction of emotional distress (Count VII), negligent infliction of emotional distress (Count VIII) and statutory negligence under the Massachusetts Torts Claims Act, Mass. Gen. L. c. 258, §2 ("MTCA") (Count IX). D. 1 ¶¶ 40-87; D. 26-2 ¶¶ 70-115. Defendants now move to dismiss Plaintiffs' complaint under Fed. R. Civ. P. 12(b)(6). D. 11. Plaintiffs move to amend their complaint, D. 23, which Defendants oppose, D. 25. For the reasons stated below, the Court ALLOWS IN PART and DENIES IN PART Defendants' motion to dismiss, D. 11, and ALLOWS Plaintiffs' motion to amend, D. 23.

II. Standard of Review

To survive a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a complaint must "contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Reading the complaint "as a whole," the Court must conduct a two-step, context-specific inquiry. García-Catalán v. United States, 734 F.3d 100, 103 (1st Cir. 2013). First, the Court "distinguish[es] the complaint's factual allegations (which must be accepted as true) from its conclusory legal allegations (which need not be credited)." Saldivar v. Racine, 818 F.3d 14, 18 (1st Cir. 2016) (quoting Cardigan Mountain Sch. v. N.H. Ins. Co., 787 F.3d 82, 84 (1st Cir. 2015)). Second, taking the well-pled facts as true and "drawing all reasonable inferences in the pleader's favor," the Court determines if the facts "plausibly narrate a claim for relief." Id.

III. Factual Background

The following allegations, unless otherwise noted, are drawn from the amended complaint, D. 26-2, and are accepted as true for the purposes of considering the motion to dismiss.¹ Theyoccurred during the 2014-2015 school year, while T.K. was an eighth grade student at Barnstable High School. D. 26-2 ¶¶ 13-14.²

Falvio Desantos, a tenth grade student at Barnstable High School during this time, allegedly drugged and raped T.K. in a stairwell in the school on November 1, 2014. D. 26-2 ¶¶ 15, 22, 24-25. Desantos had "a long history of criminal behavior both in and out of school," including selling drugs in the school, leading to his being on "criminal probation" at the start of the school year. D. 26-2 ¶¶ 16, 30. Barnstable High School and the principal, Clark, were kept apprised of Desantos's "criminal charges" through the school's resource officer and member of the Barnstable Police Department, Reid Hall. D. 26-2 ¶¶ 17-18.

T.K. experienced severe, ongoing emotional trauma as a result of the rape, resulting in a pattern of cutting herself, drug addiction, alcohol and marijuana use and other "emotional and behavioral changes." D. 26-2 ¶¶ 26-29, 32. BPS's records reflect that T.K. had "school attendance issues" and "increasing[ly] bad behavior." D. 26-2 ¶¶ 31, 45-46. After the incident, T.K. was "regularly bull[i]ed on an ongoing basis," as girls allegedly slapped her and stole various items of hers. D. 26-2 ¶ 34. She "suffered ongoing harassment and intimidation from her classmates as the rape and drug inducement became well known to the whole student body," including "sexual propositions, name calling, and rejections . . . in school and via social media." D. 26-2 ¶¶ 43-44.

As alleged, the high school administration—including Hall—failed to report any actions inflicted upon T.K., which would have "cause[d] a criminal charge to be pressed against any person including but not limited to Falvio Desantos." D. 26-2 ¶ 35. This failure to report allegedly violates the Town's "Bullying Plan." D. 26-2 ¶ 63. Melissa Collins, T.K.'s high school housemaster and vice principal,³ informed T.K.'s parents of the "incidents with Falvio and the other students" in spring 2015, noting that "she had attended various school meetings regarding T.K." D. 26-2 ¶ 38. Hall then set up "a specialized interview with T.K. regarding her rapes and emotional issues at the Barnstable County Juvenile Center." D. 26-2 ¶ 39. At this interview, T.K. was unable to articulate the causes of her trauma. D. 26-2 ¶ 40. T.K. also alleges that Clark was aware of the incidents from which she suffered. D. 26-2 ¶ 44.

G.K. and V.K. regularly called the high school, including Collins and the special education coordinator, Kari Hoffman, expressing concern about T.K.'s needs. D. 26-2 ¶ 41. Barnstable did not develop "a comprehensive treatment plan" to address her trauma during that school year. D. 26-2 ¶ 43. At the end of the school year, T.K.'s parents requested a summer program and additional support, which the school denied. D. 26-2 ¶ 47. As a result, T.K. remained in G.K. and V.K.'s care, requiring their supervision at all hours, due to her "drug and emotional issues." Id. During T.K.'s ninth grade year, BPS placed her in the Plymouth Area Collaborative, "a day program for behavior[ally] disturbed and academically impaired children in Plymouth." D. 26-2 ¶ 49. This program ended at 2:30 p.m. each day, which created additional challenges for T.K. and her parents, who had to leave work early to be home for T.K. D. 26-2 ¶¶ 50-52.

T.K.'s parents sought assistance from the Barnstable Juvenile Court, which placed T.K. in a ninety-day drug treatment program at Grace House. D. 26-2 ¶ 54. Grace House and T.K.'s therapist recommended she enter a residential therapeutic program. D. 26-2 ¶ 55. After BPS "refused any residential placement and did no evaluation themselves," G.K. and V.K. requested a hearing before the Bureau of Special Education Appeals ("BSEA") in pursuit of a residential therapeutic program. D. 26-2 ¶¶ 55-56. BPS agreed to "an evaluation at the Dr. Franklin PerkinsSchool," or "Perkins," a residential therapeutic program, the results of which were reviewed in March 2017. D. 26-2 ¶¶ 57-58. T.K.'s parents then withdrew the BSEA request. D. 26-2 ¶ 58. T.K.'s wellbeing substantially improved at Perkins and she returned home during the summer. D. 26-2 ¶ 59. In September 2017, she began attending another high school in another town where she has been "doing well." D. 26-2 ¶¶ 60-61.

IV. Procedural History

Plaintiffs instituted this action on September 18, 2017. D. 1. Defendants have now moved to dismiss for failure to state a claim. D. 11. After opposing Defendants' motion, D. 18, Plaintiffs moved to file an amended complaint, D. 23; D. 26-2. The Court heard the parties on the pending motions and took these matters under advisement. D. 27.

V. Discussion

Plaintiffs assert the same nine counts against Defendants in the amended complaint as in their original complaint. See D. 26-2 at 14-22; D. 1 at 11-20. In their amended complaint, Plaintiffs assert two claims—Title IX (Count I) and common law negligence (Count II)—against all Defendants, D. 26-2 at 14-16, whereas the original complaint addresses these claims towards only Barnstable and BPS, D. 1 at 11-13. The Court disregards these changes, however, as they are inconsistent with (1) Plaintiffs' statement that the amended complaint only "clarify[ies] facts and expand[s] the facts in support of Plaintiff's complaint" and "fix[es] typographical errors," and that "they do not substantially alter the allegations made in the Complaint nor charge the defendants with any further causes of action," D. 23 at 3; (2) the facts alleged in support of each claim, still addressing only Barnstable and BPS, D. 26-2 ¶¶ 72-83; and (3) Plaintiffs' continued pursuit of Count III, alleging common law negligence as to Defendants Clark and Mayo-Brown, D. 26-2 at 17. The Court also notes that Title IX establishes a private right of action only to claims againsteducational institutions and not individual defendants, so including Defendants Clark and Mayo-Brown within Count I would be improper. See Frazier v. Fairhaven Sch. Comm., 276 F.3d 52, 65 (1st Cir. 2002). The Court thus strikes these changes in the amended complaint and reviews Counts I and II as alleged against Defendants BPS and Barnstable only, as asserted in the original complaint, D. 1 at 11-20.

A. Title IX (Count I)

Plaintiffs assert a claim against Barnstable and BPS under Title IX based on their actions surrounding T.K.'s alleged rape and subsequent sexual harassment and intimidation. D. 26-2 ¶¶ 70-78. Title IX provides that "[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance." 20 U.S.C. § 1681(a). Although "Title IX's express means of enforcement [is] by administrative agencies," Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 288 (1998), the statute implies a private right of action entitling plaintiffs to injunctive relief and damages for sexual harassment under certain limited circumstances, Fitzgerald v. Barnstable Sch. Comm., 555 U.S. 246, 255 (2009); Davis v. Monroe...